5. The Optional Protocol
93. The former Minister explained that the Government
does not generally see benefit in the ratification of Optional
Protocols granting the right of individual petition to international
bodies, because the decisions of international monitoring bodies
are not binding.[99]
She explained that the Government was waiting to publish the
results of the Ministry of Justice's review of the experimental
ratification of the Optional Protocol to CEDAW (the UN Convention
on the Elimination of Discrimination against Women). She told
the Committee that no decision had been taken, but a decision
not to ratify the Optional Protocol should not be taken to "imply
that [the Government's] commitment to human rights for disabled
people is somehow reduced."
94. The TUC told the Committee:
The Optional Protocol offers the means for individuals
to seek redress under the Convention and the TUC supports UK citizens
having the means to enforce the rights that the Government has
signed up to. Not to ratify the Protocol at the same time as
the Convention would signal a retreat from the principles underlying
both.[100]
95. The EHRC added a number of additional reasons
for ratification of the Optional Protocol. These included that:
- the Opinions of the Committee
will create greater understanding of how the Convention should
be developed and interpreted and the UK is in a good place to
help with this (the Committee will be able to praise examples
of good practice as well as to help to develop further any inadequate
policies);
- it will allow the domestic courts to start to
take account of the Convention once the Committee starts to be
asked for its views of decisions from the UK courts; and
- it is difficult to see any arguments against
granting this extra right to people with disabilities - after
all if the Government is confident that the UK laws and policies
comply then there will be very few successful cases.[101]
96. The European Commission proposes that the
European Community should ratify the Optional Protocol. If this
is agreed, it is unclear how this would affect citizens within
the UK. It is likely that if the EC were to ratify the Optional
Protocol, but the UK did not, EU citizens in the UK could bring
individual cases to the Committee on the Rights of Persons with
Disabilities on issues where the EC had exercised its competence
(for example, in relation to employment), but not in relation
to other matters.
97. We asked the Minister to explain the Government's
approach to the Optional Protocol. He told us that the Government
did not fear a flood of applications under the right of individual
petition. He noted the ongoing review by the Ministry of Justice
of the UK ratification of the Optional Protocol to the UN Convention
on the Elimination of Discrimination Against Women (the CEDAW
review) and explained that despite this review, his office was
canvassing views of other Government departments on whether the
UK should sign and ratify the Optional Protocol, accepting the
right of individual petition. The outcome of the CEDAW review
was published by the Ministry of Justice on 4 December 2008.[102]
The Minister for Human Rights explained that the value of that
review had been limited as the number of cases brought (two) had
been statistically insignificant. He confirmed that the Government
would now review the merits of ratification of individual mechanisms
for individual petition to international human rights bodies on
a case by case basis. [103]
98. We consider that the benefits of ratification
of the Optional Protocol to the UNCRPD are reasonably clear.
The UK has led the field in pushing for the acceptance of the
Convention and advocating the rights of people with disabilities
to equal treatment. We have received evidence that the right
to individual petition is considered an essential part of participation
in the Convention by disabled people and their organisations.
In addition, we consider that the participation of the UK, from
an early stage, in the interpretation of the Convention and the
development of its monitoring mechanisms would be valuable not
only for disabled people in the UK, but for the ongoing development
of the Convention at an international level. In any event, should
the European Commission proceed to ratify the Optional Protocol
to the Convention, we could end up with the absurd situation that
disabled people in the UK could take their cases to the UN, but
only in relation to areas of law or policy where the EC had exercised
competence, not purely domestic legislation or administrative
action. In the field of equality and non-discrimination this
is likely to leave a limited area where the UN monitoring mechanism
would not apply. We recommend that the Government undertakes
to sign and ratify the Optional Protocol at the same time as it
ratifies the Convention.
99 Ev 20 Back
100
Ev 28 Back
101
Ev 41 para 3.13 Back
102
Ministry of Justice, Optional Protocol to the Convention on the
Elimination of All Forms of Discrimination Against Women, The
Experience of the United Kingdom: An Evaluation, Professor Jim
Murdoch, 4 December 2008. Back
103
HC Deb, 4 Dec 2008, Col 11WS Back
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